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( 155 .)


rule of law by a finding of contempt. This can be achieved equally by a declaratory finding
of the court as to the contempt against the minister as representing the department. By
making the finding against the minister in his official capacity the court will be indicating
that it is the department for which the minister is responsible which has been guilty of
contempt. The minister himself may or may not have been personally guilty of contempt.
The position so far as he is personally concerned would be the equivalent of that which needs
to exist for the court to give relief against the minister in proceedings for judicial review.
There would need to be default by the department for which the minister is responsible.
. . . While [Mr Baker] was Home Secretary the order was one binding upon him person-
ally and one for the compliance with which he as the head of the department was person-
ally responsible. He was, therefore, under a strict liability to comply with the order. However,
on the facts of this case I have little doubt that if the Court of Appeal had appreciated that
they could make a finding against Mr Baker in his official capacity this is what the court would
have done. The conduct complained of in this case which justified the bringing of contempt
proceedings was not that of Mr Baker alone and he was acting on advice. His error was
understandable and I accept that there is an element of unfairness in the finding against him

Mr Baker™s appeal was dismissed, save that ˜the Home Secretary™ was substituted
as the person against whom the ¬nding of contempt was made.
Sir William Wade remarked of this decision that it had ˜put the rule of law
back on the rails™ (The Times, 17 August 1993). The case has received extensive
comment. On M v Home O¬ce in the Court of Appeal see Wade (1992) 142 NLJ
1275, 1315; (1992) 108 LQR 173; Marshall [1992] PL 7; and in the House
of Lords, Allan [1994] CLJ 1; Gould [1993] PL 568; Harlow (1994) 57
MLR 620. For a more sceptical view of the achievements of M v Home O¬ce, see
A Tomkins, Public Law (2003), pp 51“4.
The position in Scotland was historically di¬erent and was confused by an
unfortunate mix of some unhelpful English precedents being applied in
Scotland and some remarkably poor drafting in the Crown Proceedings Act
1947. However, Scots law has now been (more or less) brought into line with
the English law position as set out in M v Home O¬ce: see Davidson v Scottish
Ministers [2005] UKHL 74, 2005 SLT 110. See further, Tomkins, ˜The Crown in
Scots law™ in A McHarg and T Mullen (eds), Public Law in Scotland (2006).
It is to be noted that the Law Lords in M v Home O¬ce did not question the
continuing immunity of the Crown itself from judicial process. Sir Stephen
Sedley has remarked that the supposition of the immunity of the Crown as
executive ˜groans under an unnecessary burden of history and myth™ (C Forsyth
and I Hare (eds), The Golden Metwand and the Crooked Cord (1998), p 262) but,
even after M v Home O¬ce, it remains the law, as Sedley LJ himself ruled in
Chagos Islanders v Attorney General [2004] EWCA (Civ) 997.
94 British Government and the Constitution

(c) Discretion and the rule of law
Statutes often entrust ministers and other public authorities with discre-
tionary power, allowing them “ within whatever limits may be ¬xed “ to
choose whether or in what way to exercise the power. Can such discretion in
executive decision-making be reconciled with the principle that all uses of
executive power should be governed by law? Dicey was apprehensive of the
danger implicit in discretion, saying that the rule of law excluded ˜wide dis-
cretionary authority on the part of the government™. In this, Gavin Drewry
remarks, Dicey ˜gave currency to a cripplingly restricted view of public law
which failed to accommodate the looming reality of a twentieth century inter-
ventionist state™ ((1995) 73 Pub Adm 41, 46). We have today a better under-
standing of the necessity and value of discretionary power in many branches
of public administration, in order that varying circumstances as well as
the needs of justice in individual cases can properly inform the making of

Kenneth Culp Davis, Discretionary Justice (1971), pp 17, 42

Rules without discretion cannot fully take into account the need for tailoring results to unique
facts and circumstances of particular cases. The justification for discretion is often the need
for individualized justice. This is so in the judicial process as well as in the administrative
Every governmental and legal system in world history has involved both rules and
discretion. No government has ever been a government of laws and not of men in the sense
of eliminating all discretionary power. Every government has always been a government of
laws and of men. . . .
Elimination of all discretionary power is both impossible and undesirable. The sensible
goal is development of a proper balance between rule and discretion. Some circumstances
call for rules, some for discretion, some for mixtures of one proportion, and some for mix-
tures of another proportion. . . . [T]he special need is to eliminate unnecessary discretionary
power, and to discover more successful ways to confine, to structure, and to check necessary
discretionary power.

Davis was of the opinion that the degree of discretion allowed to administrative
authorities was often too great and that injustice was more likely to result from
discretion than from the application of rules. But rules are not always the most
apt means of achieving goals of e¬ciency and justice, and it has been argued
that the British tradition favours discretion as opposed to ˜the rigidities of legal
formalism™: ˜Administration is viewed as in the ¬rst place a discretionary
activity, the bene¬ts of which are likely to be reduced if it has to be conducted
within a framework of detailed legal regulation™ (Nevil Johnson, Memorandum
to the Treasury and Civil Service Committee, Fifth Report, HC 27-III of
1993“94, Appendix 10). In particular, a discretion which is ˜structured™ in
95 The ideas of the constitution

a framework of published policies and fair procedures may be a more just
and e¬ective method of dealing with claims upon public resources than the
application of a mass of detailed and complex rules. The system of social
security provision for those in need makes use of both rules and discretion,
government policy showing a preference sometimes for rules and sometimes for
discretion or arriving at a blend of the two techniques, as in the making of
payments from the social fund (A Ogus, E Barendt and N Wikeley™s The Law of
Social Security (5th edn 2002), ch 13).
The administrative process cannot, in any event, be understood as involving a
simple choice between rules and discretion. They can work in combination, and
procedures of decision-making should be constructed which are appropriate
to the objectives sought and have regard for values such as fairness, e¬ciency,
openness and accountability. (See further D Galligan, Discretionary Powers
(1986), ch 2; K Hawkins (ed), The Uses of Discretion (1992); R Baldwin, Rules and
Government (1995), ch 3.)
If discretionary power is conferred in wide and unquali¬ed terms, there is
a risk “ we must concede to Dicey “ that its exercise may be infected by uncer-
tainty, inconsistency or even perversity. We may see it as a function of the rule
of law to ensure that well-founded claims, individual interests and indeed civil
liberties are not at the mercy of uncontrolled discretion, and generally to
prevent discretionary power from degenerating into arbitrariness by insisting
upon e¬ective limits, standards and controls. How, in practice, are such limits
to be established?
A statute which confers discretionary power will often specify criteria and
limits to be observed by the decision-maker. Consider, for example, a statute
such as the Animals (Scienti¬c Procedures) Act 1986, which gives the Secretary
of State a discretionary power to grant licences allowing the use of animals
for experimental purposes. Section 5 provides that, before granting a licence,
the Secretary of State must be satis¬ed as to a speci¬ed range of matters
(eg that the purpose of the research cannot be achieved satisfactorily by any
other reasonably practicable method), and must ˜weigh the likely adverse
e¬ects on the animals concerned against the bene¬t likely to accrue™ from the
Where the terms of a statute do not disclose limits upon the exercise of
a power conferred by it, such limits may be imported by common law princi-
ples of fairness and legality. This is well illustrated by the following case.

R v Secretary of State for the Home Department, ex p Pierson [1998]
AC 539 (HL)
In terms of section 35 of the Criminal Justice Act 1991 the Home Secretary had
a discretionary power to release on licence a prisoner serving a mandatory life
sentence for murder. (This power has since been removed by the Criminal
Justice Act 2003: see below, p 110.) Successive Home Secretaries had adopted
96 British Government and the Constitution

and applied a policy of ¬xing a penal element of the sentence (the ˜tariff ™),
intended as a period which would satisfy the requirements of retribution and
deterrence, to be followed by any further period of detention considered by the
Home Secretary to be necessary for the protection of the public. In a policy
statement issued in 1993 the then Home Secretary announced that the tariff set
at the beginning of a mandatory life sentence would be reviewed before the pris-
oner was released and might exceptionally be increased if it was not then
believed to be adequate.
In the case of the appellant, Pierson, a mandatory life prisoner, a previous
Home Secretary had in 1988, at the beginning of the sentence, ¬xed the tari¬
at twenty years on the basis that the appellant had committed double premed-
itated murder. This decision was subsequently communicated to the appellant
who was invited (in accordance with R v Secretary of State for the Home
Department, ex p Doody [1994] 1 AC 531) to make representations about it. In
responding the appellant objected that the two murders had been part of
a single incident and that they were not alleged to have been premeditated. The
Home Secretary accepted that it had been wrong to proceed on the basis of
premeditation and acknowledged that the murders were part of a single inci-
dent, but decided nevertheless that twenty years was appropriate to meet the
requirements of retribution and deterrence. This decision was challenged in
proceedings for judicial review.
The House of Lords held that the decision to con¬rm a tari¬ period origi-
nally ¬xed on the basis of aggravating circumstances erroneously taken into
account amounted in substance to an increase in the tari¬. A majority of three
Law Lords held that the decision was unlawful and must be quashed, but
di¬ered in their reasons. Lords Steyn and Hope, of the majority, held that the
power conferred on the Home Secretary must be exercised in accordance with
minimum standards of fairness, and did not allow him to increase the penal
tari¬ once it had been ¬xed and communicated to a prisoner. In the present
context the speech of Lord Steyn is of interest for its reliance on the rule of law
or ˜principle of legality™.
Lord Steyn held it to be a general principle of English law ˜that a lawful sen-
tence pronounced by a judge may not retrospectively be increased™ and that
˜a convicted criminal is entitled to know where he stands so far as his punish-
ment is concerned™. His Lordship continued as follows.

Lord Steyn: . . . The question must now be considered whether the Home Secretary, in making
a decision on punishment, is free from the normal constraint applicable to a sentencing
power. It is at this stage of the examination of the problem that it becomes necessary to con-
sider where in the structure of public law it fits in. Parliament has not expressly authorised
the Home Secretary to increase tariffs retrospectively. If Parliament had done so that would
have been the end of the matter. Instead Parliament has by section 35(2) of the Act of 1991
entrusted the power to take decisions about the release of mandatory life sentence prison-
97 The ideas of the constitution

ers to the Home Secretary. The statutory power is wide enough to authorise the fixing of
a tariff. But it does not follow that it is wide enough to permit a power retrospectively to
increase the level of punishment.
The wording of section 35(2) of the Act of 1991 is wide and general. It provides that
˜the Secretary of State may . . . release on licence a life prisoner who is not a discretionary life
prisoner™. There is no ambiguity in the statutory language. The presumption that in the event of
ambiguity legislation is presumed not to invade common law rights is inapplicable. A broader
principle applies. Parliament does not legislate in a vacuum. Parliament legislates for
a European liberal democracy founded on the principles and traditions of the common law. And
the courts may approach legislation on this initial assumption. But this assumption only has
prima facie force. It can be displaced by a clear and specific provision to the contrary . . .
. . . [A] general power to increase tariffs duly fixed is in disharmony with the deep rooted
principle of not retrospectively increasing lawfully pronounced sentences. In the absence of
contrary indications it must be presumed that Parliament entrusted the wide power to make
decisions on the release of mandatory life sentence prisoners on the supposition that the
Home Secretary would not act contrary to such a fundamental principle of our law. There are
no contrary indications. Certainly, there is not a shred of evidence that Parliament would have
been prepared to vest a general power in the Home Secretary to increase retrospectively
tariffs duly fixed. The evidence is to the contrary. When Parliament enacted section 35(2) of
the Act of 1991 “ the foundation of the Home Secretary™s present power “ Parliament knew
that since 1983 successive Home Secretaries had adopted a policy of fixing in each case
a tariff period, following which risk is considered. Parliament also knew that it was the prac-
tice that a tariff, once fixed, would not be increased. That was clear from the assurance in the
1983 policy statement [by the Home Secretary, Mr Leon Brittan] that ˜except where a prisoner
has committed an offence for which he has received a further custodial sentence, the formal
review date will not be put back™. What Parliament did not know in 1991 was that in 1993
a new Home Secretary would assert a general power to increase the punishment of prisoners
convicted of murder whenever he considered it right to do so. It would be wrong to assume
that Parliament would have been prepared to give to the Home Secretary such an unprece-
dented power, alien to the principles of our law . . .
. . . The correct analysis of this case is in terms of the rule of law . . .
. . . Unless there is the clearest provision to the contrary, Parliament must be presumed
not to legislate contrary to the rule of law. And the rule of law enforces minimum standards
of fairness, both substantive and procedural. I therefore approach the problem in the present
case on this basis.
It is true that the principle of legality only has prima facie force. But in enacting section
35(2) of the Act of 1991, with its very wide power to release prisoners, Parliament left
untouched the fundamental principle that a sentence lawfully passed should not retrospec-
tively be increased. Parliament must therefore be presumed to have enacted legislation wide
enough to enable the Home Secretary to make decisions on punishment on the basis that
he would observe the normal constraint governing that function. Instead the Home Secretary
has asserted a general power to increase tariffs duly fixed. Parliament did not confer such
a power on the Home Secretary.
98 British Government and the Constitution

It follows that the Home Secretary did not have the power to increase a tariff lawfully
fixed . . .
It was agreed before your Lordships™ House that the Home Secretary™s decision letter of
6 May 1994 did communicate a decision to Mr Pierson to increase the tariff in his case. That
decision was in my judgment unlawful and ought to be quashed.

An authority vested with discretionary power may itself adopt policies or rules
for the exercise of its discretion. Indeed a discretionary power may be of a kind,
and of such width, that it ˜calls out for the development of policy as to the way
it will in general be exercised™ (Lord Woolf MR in R v Secretary of State for the
Home Department, ex p Venables [1998] AC 407, 432). Adoption of a policy can
be helpful in preventing inconsistency or arbitrariness in the use of discretion
(see R v Secretary of State for the Home Department, ex p Yousaf [2000] 3 All ER
649, [44]). Any policy adopted must, of course, be compatible with the pur-
poses of the statute conferring the power. In addition, the authority must not
apply its self-imposed rules in an in¬‚exible way so as to fetter the discretion it is
required to exercise, and must remain willing to listen to those with something
new to say (see further Hilson, ˜Judicial review, policies and the fettering of
discretion™ [2002] PL 111).
Again, standards and rules for the exercise of discretionary power may be for-
mulated by other agencies, in particular by the courts (especially in developing
the principles of judicial review) although the Council on Tribunals and the
Parliamentary Ombudsman also have a role in the evolution of principles
governing the exercise of discretion. (See D Galligan, Discretionary Powers
(1986), ch 5.)
Finally, it is desirable that there should be machinery for the checking of
discretionary decisions. There may be provision for scrutiny of such decisions
by a supervisory authority within the administrative body itself; or statute may
provide for appeal to a court or tribunal. Questions of the legality of decisions
and the abuse of discretion can generally be raised by way of judicial review.
(These matters are further considered in chapter 10.)

(d) The rule of law: wider conceptions?
The rule of law in its minimal sense of government according to law may seem
to be a relatively unexacting principle, which is satis¬ed by any state that has
taken the trouble to invest its o¬cers with legal authority to do what is required
of them. The rule of law in this limited sense is not inconsistent with despotic


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